Upcoming Reporting Obligations on Form SD

February 12, 2014

On January 10, 2014, the United States Securities and Exchange Commission (the “SEC”) posted the new Form SD on its website. Form SD is a disclosure form to be used to satisfy requirements relating to the disclosure of (1) certain government payments made by “resource extraction issuers,” and (2) the sources of “conflict minerals” contained in products that a reporting issuer manufactures or contracts to manufacture. Affected companies will be required to report on Form SD for the first time by June 2, 2014.

Resource Extraction Issuer Disclosure Rules Struck Down

On July 2, 2013, the U.S. District Court for the District of Columbia vacated the SEC’s resource extraction issuer disclosure rules adopted in 2012 and remanded to the SEC the task of promulgating a new set of rules. The rules would have required disclosure on Form SD of certain government payments made by “resource extraction issuers,” defined as issuers involved in the commercial development of oil, natural gas or minerals. Our previous bulletin describing these rules, dated June 13, 2013, is available here.

The SEC plans to commence a new rulemaking process to draft new resource extraction issuer disclosure rules. It is unclear when new proposed rules will be issued.

Conflict Minerals Disclosure

On August 22, 2012, the SEC issued final rules requiring disclosure relating to “conflict minerals” contained in products that public companies manufacture or contract to manufacture and that are necessary to the functionality of those products or the production of those products. “Conflict minerals” are defined as cassiterite, columbite-tantalite, gold, wolframite and other minerals determined by the U.S. government to be financing conflict in the Democratic Republic of Congo or adjoining countries. The SEC has published an FAQ relating to the rule, available at http://www.sec.gov/divisions/corpfin/guidance/conflictminerals-faq.htm.

The conflict minerals rule is currently the subject of a legal challenge in the District of Columbia federal court. On July 23, 2013, the United States District Court for the District of Columbia upheld the validity of the rule, and in August the plaintiffs appealed the judgment. We encourage public reporting companies affected by the rule to continue preparations in advance of the June 2, 2014 Form SD filing deadline.

Failure to Timely File Form SD

The SEC has stated that the failure by an issuer to timely file Form SD will subject an issuer to Exchange Act reporting liability but will not impact an issuer’s eligibility to file a Form S-3 or F-3 shelf registration statement.

If you have questions about the SEC’s rules applicable to resource extraction issuers or conflict minerals disclosure, please contact your Seward & Kissel attorney.